Terms & Conditions

INTRODUCTION FOR MEDIABILITY STORE

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1 DEFINITIONS

In these Terms and Conditions, terms starting with a capital letter shall have the meaning defined either in the provision in which the term occurs or in this Article 1. The following terms shall have the corresponding meaning:

1.1. “Affiliate” shall mean any parent company controlling Mediability, and all present and future companies in which Mediability, or its parent companies, directly or indirectly owns or controls 50 % or more of the voting shares.

1.3. “Intellectual Property Rights” shall mean all rights to technical solutions, methods, processes, procedures and software, regardless of whether or not these are or may be patented. This also includes all copyrights and other rights to source code, trademarks, design, databases, integrated circuit layout design, drawings, specifications and the like.

“Quotation” means the quotation issued by Mediability to Customer with respect to the supply of Mediability Products and/or Services.
1.6. “Mediability” means the Mediability entity identified in the applicable Quotation.

1.7. “Mediability Equipment” means any product sold or supplied by Mediability that is not Mediability Software/hardware.

1.9. “Mediability Software” means any software and support solutions provided by Mediability to Customer.

1.10. “Terms and Conditions” shall mean these terms and conditions.

2 ORDERS

2.1. These Terms and Conditions apply to all sales of Mediability Products by Mediability, and shall constitute a binding contract to the exclusion of any other agreement regarding the sale of Mediability Products, including without limitation any terms and conditions of Customer. Acceptance and/or use of any Mediability Products constitutes acceptance of these Terms and Conditions. In the event of any conflict between these Terms and Conditions and any other agreement affixed to a form, order, blank acceptance or counter offer, these Terms and Conditions shall prevail and exhaustively govern the sale, and no other and/or additional agreement or terms and conditions shall be of force or effect. Mediability’s failure to object to any conflicting or additional agreement or terms and conditions does not constitute acceptance thereof.

2.2. All Quotations executed by Mediability shall, regardless of whether a specific reference is made, be subject to these Terms and Conditions, unless expressly stated otherwise by Mediability in the Quotation . Quotations shall detail the Mediability Products to be purchased, the quantity thereof, the delivery date, shipping instructions and any other applicable terms and conditions.

2.3 Customers may place orders with Mediability pursuant to Mediability’s standard order procedures and, where applicable, based on a Quotation executed by Mediability. Such order shall be subject to these Terms and Conditions and the applicable Quotation. All orders are final. Once an order has been placed with Mediability, Customer may not change, reschedule or cancel any purchase order or part thereof. Alterations to the Mediability Products that do not change form, fit or function, or changes which Mediability deems necessary to comply with specifications, changed safety standards or governmental regulations (collectively, “Alterations”), may be made at any time prior to delivery to Customer. Customer acknowledges that Alterations may cause increases in the sales price for Mediability Products, and hereby accepts to be bound by such increase effective upon the implementation of any Alterations. Mediability shall provide written notice of any such increases to Customer.

2.4 Neither Customer nor Mediability may assign nor subcontract any of its rights or obligations under any order or agreement in whole or in part without prior written consent of the other. Such consent may be withheld by the other Party at its own sole discretion. Notwithstanding the above, Mediability shall always be free to, without any need for consent, assign its rights and/or obligations under an order or agreement in whole or in part to an Affiliate or other collaborator of Mediability and shall in such case give written notice to Customer. Any approval of a subcontract shall not relieve the subcontracting party from any of its obligations under the order or agreement, or impose any obligations or liability upon the other party towards the subcontractor.

Mediability enters into the agreement with Customer either for itself (in its own name) or as agent for and in the name of an Affiliate or other principal, depending on the circumstances. Upon receipt of an order from Customer, Mediability shall ensure that needed documents and information are passed on to principals and collaborators and purchase orders placed with sub-suppliers.

3 PRICE AND TERMS OF PAYMENT

3.1. Applicable prices for Mediability Products shall be as stated in Mediability’s order confirmation. In the absence of such order confirmation, prices shall be as stated in a signed Quotation from Mediability in force at the time of the order.

3.2. Mediability shall render its invoice upon shipment of the Mediability Products. Unless Mediability by written agreement has offered credit to Customer, the full price for the order shall be paid to Mediability within 10 days of the date of the invoice. The amount of credit and terms of payment may be changed and credit may be withdrawn by Mediability at any time at its own sole discretion. In the absence of full and due payment from Customer, the overdue amount shall bear interest at either a rate of 1.5% per month or the highest rate permitted by law, whichever is highest. The payment of such interest shall not in any way limit Mediability’s right to repossess the sold Mediability Products in accordance with its title and ownership pursuant to Article 4.2 below or to seek any additional remedies or damages. Customer shall pay the full price for the order without any deduction, set-off or counterclaim of any kind. Prices do not include applicable taxes, such as e.g. applicable sales tax and VAT, which shall be payable by Customer.

3.3. Payment shall be made in the currency specified in the order confirmation or the Quotation or, if no currency is specified, in Euro, where Customer is located in Europe, and US Dollars where Customer is located elsewhere.

4 DELIVERY, TITLE AND RISK OF LOSS

4.1. Unless otherwise agreed in writing by Mediability, all physical deliveries of Mediability Products shall be Ex Works Mediability’s facility (Incoterms 2000). Customer shall reimburse Mediability all incurred costs of insurance and transportation of shipments and shall further be solely responsible for all import duties, taxes and any other expenses incurred and all licenses or clearances required at port of entry and destination. Mediability reserves the right to adopt an equitable plan of allocation and to adjust delivery schedules accordingly in the event of shortages. Unless agreed otherwise in writing by the parties or stated otherwise in Mediability’s standard policies, Mediability shall make purchased Mediability Software available for download over the Internet by the Customer, in which event all of Mediability’s obligations in respect of the delivery of such Mediability Software shall be fulfilled upon provision to Customer of a functional Internet URL for download of the purchased Mediability Software.

4.2. Until full payment of the applicable purchase price with applicable interests has been received by Mediability, Mediability shall have a fixed charge over/security for unpaid purchase in the Mediability Products pursuant to the Norwegian Mortgages and Pledges Act Section 3-15.

4.3. For the purpose of these Terms and Conditions, and all thereon based Quotations, orders and agreements, all references to the “sale” of Mediability Products shall be construed as meaning the sale of the physical units thereof only. Hence, all Intellectual Property Rights in and related to any Mediability Products shall remain the sole and exclusive property of Mediability. For the avoidance of doubt, all Mediability Software is licensed, not sold.

4.4 Customer shall it its own cost comply with all applicable export, import, or other relevant laws of any applicable jurisdiction, including applicable regulations of the United States Department of Commerce. Customer is strictly prohibited from exporting, re-exporting or importing the Mediability Products, regardless of method (including, for example and not by limitation by use of physical delivery, e-mail, or download from FTP or website, etc.), without first complying with all applicable government export laws, rules, regulations, orders, and obtaining any necessary approvals or permits.

4.5 Mediability may supply Customer with security keys (“Dongles”) for specified Mediability Products for security purposes. Customer should make all efforts to safeguard Dongles. Such specified Mediability Products may not be functional without the provided Dongles. Customer bears all responsibility for lost or stolen dongles (including, without limitation, any loss of functionality with respect to Mediability Products that require such dongles to operate) and Mediability shall not bear any responsibility for any such loss or theft and shall not be obligated to provide replacements or refunds thereof. Mediability may provide replacements for lost or stolen dongles in its sole and absolute discretion, the provision whereof shall not be construed as imposing any responsibility or liability on Mediability with regard to any other lost or stolen dongle.

4.6 Upon receipt of Mediability Products, Customer shall immediately inspect the received goods and/or services, and any objections that Consumer should have with respect to such goods or services shall immediately be made in writing to Mediability. If no objections are received by Mediability within 14 days of the Customer’s receipt of a Mediability Product, the Customer shall be deemed to have accepted the delivery as in accordance with contract. For the avoidance of doubt, this Section 4.6 does not establish and shall not be construed as establishing any basis for such objections.

5 WARRANTY; DISCLAIMERS

5.1. ALL MEDIABILITY PRODUCTS ARE PROVIDED “AS-IS”. EXCEPT AS OTHERWISE EXPRESSLY SET OUT HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, MEDIABILITY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER MEDIABILITY NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT MEDIABILITY PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, THAT ANY MEDIABILITY SOFTWARE WILL BE ERROR-FREE OR OPERATE IN AN UNINTERRUPTED OR CONTINUOUS MANNER, OR THAT ANY DEFECTS IN MEDIABILITY PRODUCTS WILL BE CORRECTED. MEDIABILITY SHALL NOT BE OBLIGATED TO PROVIDE ANY UPDATES, MODIFICATIONS OR ENHANCEMENTS TO THE MEDIABILITY SOFTWARE.

5.2. Customer acknowledges, understands, accepts and agrees that where Mediability is not the original manufacturer of any Mediability Product, Mediability will pass-through to Customer warranties of the original manufacturer, only to the extent it is permitted and authorized to do so.

5.3 Certain applications using Mediability Products may invoke potential risks of death, personal injury or severe property or environmental damage (“Critical Applications”). Mediability Products are not designed and are not warranted to be suitable for use in life-support applications, devices or systems or other Critical Applications. Use of Mediability Products in such Critical Applications is understood to be fully at the risk of Customer.

6 LIMITATION OF LIABILITY

6.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIABILITY SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSS, OR EXEMPLARY DAMAGES, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUES, LOSS OF USE OF MEDIABILITY PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL; COST OF, AND PROCUREMENT COSTS FOR, SUBSTITUTE GOODS, FACILITIES, OR SERVICES; DOWNTIME COSTS, OR CLAIMS OF ANY KIND FROM THIRD PARTY.

6.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIABILITY’S LIABILITY HEREUNDER, FOR BREACH OF, OR ARISING OUT OF THESE TERMS AND CONDITIONS OR ANY AGREEMENT BASED THEREON AND/OR SALE OR INSTALLATION OF MEDIABILITY PRODUCTS, PROVISION OF SERVICES, OR OTHERWISE, SHALL BE LIMITED TO THE REFUND OF THE PURCHASE PRICE /LICENSE FEE FOR THE MEDIABILITY PRODUCT PURCHASED AND/OR LICENSED HEREUNDER AND TO WHICH THE LIABILITY IS RELATED.

7 CONFIDENTIALITY AND COMMUNICATIONS

Customer shall hold in strict confidence all information that is designated as confidential by Mediability or its licensors or suppliers, or that should reasonably be considered to be of confidential or proprietary nature, relating to Mediability Products purchased hereunder (“Confidential Information”), and shall use at least the same degree of care and diligence that Customer applies with respect to its own confidential information, but never less than what is common and reasonable, in guarding Confidential Information from unauthorized disclosure. Customer may not disclose Confidential Information to its own personnel except to those of its employees who have a need to know the Confidential Information and who are subject to written confidentiality obligations no less restrictive than those set forth herein. Notwithstanding the above. information shall not be considered as confidential if it lawfully is in or enters the public domain through no act of Customer. These Terms and Conditions and the contents hereof shall be considered Confidential Information of Mediability. The obligations of this Article shall survive any termination or expiration of these Terms and Conditions and any agreement based thereon. Customer hereby approves Mediability’s use of Customer’s logo in marketing and allows Mediability to publish non-confidential parts of the agreement. Non-confidential parts of the agreement shall mean the minimum amount of information needed to inform the market of the deal; e.g. Customer’s name, the date of deal, and which product(s) the customer has purchased.

Customer shall not prepare photographs, articles, press releases or speeches about the existence ore scope of, or work to be performed under the agreement, or any details about Mediability’s facilities or business plans without prior written consent from Mediability.

8 Mediability SOFTWARE

8.1. Supply of Mediability Software shall additionally be subject to the terms and conditions of this Article 8. In the event of a conflict between this Article 8 and other terms or conditions herein, the provisions of this Article 8 shall prevail.

8.2 Subject to the terms and conditions set out herein, Customer is granted a limited, non-exclusive, non-transferable, non-sublicensable, license to use purchased Mediability Software in the format provided by Mediability (whether executable code format or source code format) solely for the purpose and during the term specified in the applicable Quotation. Mediability Software may only be used for Customer’s own internal business use and not in the operation of a service bureau or for the benefit of any third person or entity.

8.3 Customer shall not copy, adapt or modify the Mediability Software, or develop or distribute any Mediability Software or any other works derivative thereof, or use any variation of the Mediability Software. Customer shall not, and shall not permit any third party to, disassemble, reverse engineer, attempt to find the underlying code of, or decompile any Mediability Software or any part thereof, or cause any Mediability Software to be subject to the terms of any open source software license. To the extent any of the restrictions set forth in this Article are not enforceable under applicable law, Customer shall inform Mediability in writing in each instance prior to engaging in such activity. Customer shall retain and shall not alter or obscure any notices, markings or other insignia affixed to the Mediability Software, related documentation or any part thereof.

8.3. Title to and ownership of and all proprietary rights, including all Intellectual Property Rights, in and to Mediability Software, all modifications thereto and derivative works thereof, and related documentation and all partial or complete copies thereof shall at all times remain with Mediability. As between the parties, Customer hereby acknowledges and accepts that Mediability is the sole owner of all right, title, and interest to all Mediability Software, all modifications thereto and derivative works thereof, and related documentation, and any Intellectual Property Rights therein. Any feedback Customer provides regarding Mediability Software shall be and is hereby assigned to Mediability. Mediability shall have the right to use any such feedback in any manner in current or future products or services, without further compensation or obligations to Customer.

8.4. In addition to any other termination provisions set forth herein, Mediability may terminate all licenses set forth herein if Customer should contest or oppose any Intellectual Property Rights associated with the Mediability Software (including without limitation all modifications thereto and derivative works thereof) or if Customer should advise or consult with any party engaging in any such contest. Upon any termination hereof, Customer shall cease using the Mediability Software, all modifications thereto and derivative works thereof, and related documentation and shall promptly return all copies thereof to Mediability. Customer shall delete all copies of such material in its possession and shall, within 5 days of termination, certify to the foregoing. Mediability reserves the right to discontinue the operational functionality of any Mediability Software without notice to Customer where Customer has failed to pay the full price as required.

9 GOVERNING LAW AND JURISDICTION

These Terms and Conditions and any agreement based thereon shall be governed by and construed in accordance with the laws of Norway, without resort to provisions thereof regarding the conflict of laws, and the competent courts of Bergen, Norway shall have exclusive jurisdiction over the parties with regards to these Terms and Conditions and any agreement based thereon. The Customer irrevocably consents to the personal jurisdiction of the applicable courts detailed above.

10 TERMINATION

10.1. Mediability may terminate these Terms and Conditions and any agreement based thereon upon written notice if Customer materially breaches any obligation hereunder and Customer fails to remedy such breach within 30 days after receiving notice thereof from Mediability. If such default is remedied to Mediability’s satisfaction during such 30 day notice period and a second default occurs within one (1) year of the original default, the second default shall be deemed not to be curable and Mediability may immediately terminate these Terms and Conditions and any agreement based thereon upon written notice to Customer.

10.2. To the maximum extent permitted by applicable law, Mediability may terminate these Terms and Conditions and any agreement based thereon if (i) a receiver is appointed for Customer or its property; (ii) Customer becomes insolvent or unable to pay its debts as they mature or makes an assignment for the benefit of its creditors; (iii) any voluntary proceedings are commenced by or for the Customer under any bankruptcy, insolvency or debtor relief law; (iv) any proceedings are commenced against Customer under any bankruptcy, insolvency or debtor relief law and not dismissed within 30 days, or (v) Customer is liquidated or dissolved.

11 GENERAL

11.1 Mediability shall not be liable for delays or non-fulfillment of its, or its suppliers’ or licensors’, obligations under these Terms and Conditions and any agreement based thereon or for other losses arising hereunder due directly or indirectly to causes beyond Mediability’s or its suppliers’ reasonable control, including, but not limited to, acts of God, acts (including failure to act) of any governmental authority (whether de jure or de facto), official export restrictions, port congestion, wars, insurrection, accidents, disease, fires, floods, labor disputes of any nature, prohibition of foreign exchange transfer, supplier delay or other causes. In the event of any delay or failure excused by this Article, Mediability shall as soon as reasonably practicable notify Customer of the delay, and shall as soon as reasonably practicable thereafter specify the revised delivery date. In the event of any such delay, the time of delivery or performance shall be extended for a period equal to the time lost by Mediability by reason of the delay.

11.2 These Terms and Conditions may only be changed or amended by notice in writing, executed by Mediability and Customer. This document constitutes the entire and sole agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements, representations or warranties, whether oral or written, with respect to the subject matter hereof.

11.3 Nothing contained in these Terms and Conditions shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture between the parties, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other. Neither party nor any officer or employee thereof shall, in any event, have any right collectively or individually, to bind the other party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other party, except as authorized in writing by such other party in its sole discretion.

11.4 No clerical error in any documentation relating to any order shall entitle the Customer to reject the Mediability Products which are the subject of such order.

11.5 Customer shall not assign or transfer these Terms and Conditions or any agreement based thereon or its rights or obligations pursuant to any license granted hereunder without the prior written consent of Mediability. Unauthorized assignment of any such rights or obligations shall be void and shall be deemed as a material breach of contract.

11.6 If any provision, provisions or any portions of any provisions, of these Terms and Conditions or any agreement based thereon shall be held to be invalid, illegal or unenforceable, the remaining provisions or portions of any provisions shall be valid and enforceable to the fullest extent permissible by law. All notices or written communications shall be deemed to be delivered to Customer two days after the date of posting, addressed to Customer at the last address of Customer known to Mediability.

11.7 We reserve the right to correct any errors in offers, if prices, product specifications or other details in offering contain errors.